Wednesday, May 16, 2012

Wednesday provided a couple of useful clarifications in Oracle v. Google. In the morning, the parties stipulated to a course of action regarding copyright damages that was immediately approved by Judge William Alsup and essentially amounts to what Oracle wanted: a postponement of copyright damages until after the issue of API SSO (structure, sequence and organization) liability has been clarified. It leaves a number of questions unanswered, but it's increasingly likely that the jury won't have to stay for Phase Three (damages and related issues) of the ongoing trial. That stipulation also shows once again that it was never Oracle's objective to rake in disporportionate amounts of damages: this is about whether or not Google will ultimately have to become a good citizen of the Java ecosystem. Later, in the afternoon by local time, Judge Alsup dismissed a Google defense that was raised surprisingly and belatedly:

Judge Alsup finally denied a cornerstone of Google's motion for judgment as a matter of law against Oracle's copyright claims. In that motion, Google made the following claims (I'm just quoting the headlines of section III. B and its subsections 1 and 2 of that Google motion):

"Oracle failed to prove the actual contents of the works that are the subject of its registrations or that the copyrights cover any component parts of the works"

"Oracle has not proved the contents of the works that were registered with the Copyright Office"

"Oracle has not proved that its copyright registrations cover the individual components of the works on which it bases its claims of infringement"

Oracle made this issue a whole lot less relevant by its decision not to pursue a "collection" claim. In connection with that one, Google's objections to the registration of the relevant copyrights might have had a bit more merit, or at least it might have had a somewhat reasonable basis because of certain requirements for collections to be asserted in litigation. Anyway, Judge Alsup told Oracle that he considered Google's attack on this front "mean and nasty" but also said they have the right to be just that (he didn't make a reference to the "Don't Be Evil" meme as far as I know) -- and he told Oracle he needed some case law to dismiss that claim.

Oracle did its homework, and Judge Alsup has now finally denied the related parts of Google's motion for JMOL.

One fact that helped Oracle's argument against Google's "mean and nasty" attack is that "Oracle's [and at the relevant time, Sun's] Chief Java Engineer, Mark Reinhold, testified that he had reviewed the J2SE 5.0 source code in 2006, long before the start of this litigation, to determine whether the Java API packages in J2SE 5.0 were owned by Sun or third parties" and in that process found that "Sun had a copyright notice in every single one of the API class source files" for the 37 asserted APIs. Furthermore, he "testified that nobody has ever asserted that Sun did not own all right, title and interest to these 37 API packages".

Judge Alsup found "unpersuasive" Google's argument that Oracle would have had to submit the entire Java source code to the Copyright Office in light of Copyright Office Circular 61, which states just the opposite. That document basically explains that 50 pages of source code are enough.

Besides registration, Google also disputed ownership. Oracle, however, relied on statutory law, 17 U.S.C. 401(c), according to which a certificate of registration "shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate". Judge Alsup notes (citing another case) that "[t]his presumption of ownership is true even for individual works that are broadly registered as part of a compilation or derivative work". Therefore, the way for Google to bring this challenge would have been to raise the issue in front of the jury. But "Google expressly waived
that contention in the final jury instructions".

Finally, Judge Alsup also concludes, based on the evidentiary record, that "[t]here was sufficient testimony that Exhibit 623 did accurately represent the J2SE 5.0 work registered with the Copyright Office". Apparently, that Exhibit 623 is the trial exhibit that represents the code of J2SE 5.0 and was shown to the jury for its infringement analysis.

There are still some other important issues to be adjudicated in connection with the copyright part of Oracle's case, particularly copyrightability and "fair use". But this registration and ownership non-issue, which some bloggers blew totally out of proportion (describing it, not verbatim but essentially, as one of the most brilliant defenses ever brought in a commercial lawsuit in the history of the United States), is no longer relevant (and I strongly doubt that a Google appeal of this particular decision could succeed). On Sunday, I wrote an explanation for geeks: why Google hasn't won anything against Oracle's Java APIs", applying Boolean logic and the concept of a stack to the process that will result (but has not yet resulted) in a decision on API SSO liability. For the sake of accuracy, I also mentioned the ownershp issue, but in order to simply the explanation, I said that "[t]he part on ownership may be thrown out pretty soon". Three days later it was thrown out.

The focus will now be on the judge's decision on API SSO copyrightability (which he may hand down next week, but he couldn't promise) and the upcoming patent verdict. Yesterday, the jury asked a question that suggests it will probably still need a few days for that part. And the parties filed their detailed argument for JMOL with respect to patent liability. Yes, I have yet to discuss the patent part of the trial in more detail, but recently the more interesting things happened in connection with copyright liability and case management. While I have read all of the publicly accessible material and some reports (in my opinion, both patents have been infringed and infringement was willful), it's very hard to predict what the jury is going to find. But I will analyze the parties' JMOL argument and explain it soon, and I will obviously report on the patent-related jury verdict.

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About Me

Florian Mueller is an app developer who used to be an award-winning intellectual property activist. His 30 years of software industry expertise span different market segments (games, education, productivity and infrastructure software), diverse business models, and technical and commercial areas of responsibility. In recent years, Florian advised a diversity of clients on the patent wars surrounding mobile devices, and on their economic and technical implications. (In order to avoid conflicts of interest, Florian does not hold or initiate transactions in any technology stocks or derivatives thereof, except that he is long AAPL.) He is now developing games for smartphones and tablet computers.